Alhaji Aminu Garba Safeti & Ors. V. Mujitaba Garba Safeti & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

I.T. MUHAMMAD, J.C.A.

At the Kasuwa Upper Area Court Kano, the 1st plaintiff, on behalf of fifteen others instituted a claim against the defendants. His claim is as follows.

“I am instituting this suit against Alhaji Aminu, Sani, Rabiu, Muddasiru in respect of our late father Alh. Garba Safeti who died some five months ago, he left one wife Hajiya Ummah with 20 children, 10 males and 10 females. They are: (1) Aminu (1st) defendant), Sani (2nd defendant) Rabiu (3rd defendant) Mujtaba (the plaintiff) Muddasiru (the 4th defendant) (5) Da’u (6) Matinu (7) Habibu (8) Bashir (9) Muntari and 10 females they are:- (1) Hajiya Binta (2) Dije (3) Asiya (4) Sa’adiya (5) Hauwa (6) Bilki (7) Maimuna (8) Amina (9) Rukayya., (10) Zainab.

And our late father left 3 houses one is under the custody of Alh. Aminu of Marmara quarters with the following boundaries East adjacent to Alh. Saidu. West by the road, South by the road. North by Maganin Danwake. The second house at Deneji the boundaries are from the East. I don’t know the boundary, West by the road, South by the Mosque, North by Alh. Danja. The 3rd house which is under the custody of Alhaji Rabiu which is situated at Marmara quarters has the following boundaries East by the road, West by Alh. Idi, South by road, North by Muddasiru. The fourth house is under the custody of Alhaji Muddasiru and situate at Marmara quarters, Kano. East by the road, West by Alh. Idi, South by Mallam Rabiu, North by Alh. Ado.

These are the houses in dispute which they claim that our father A. Garba Safeti has gave (sic) them as gifts of which I want the court to verify the authenticity of the said gifts. Whether they are genuine or not.”

Each of the defendants gave his response as follows:-

“ALH. AMINU: said the house in my possession was built for me by our father A. Garba Safeti who married a wife for me and gave me the house to me some 16 or 17 years ago.

SANI: The said house was built for me by our father and married for me in the said house and gave Asiya one room inside the house, eight months ago.

RABIU: Answered that the house in question was built for us, me and Sani by our father and marry our wives to us, he gave it to us since about 5 – 6 years, who later gave Sani another house where Sani is presently residing and gave Muddassiru the former position occupied by Sani some five or six years ago.

A. MUDDASSIRU said the said house was given to me by our father 9 months ago.”

The trial court proceeded to put questions to the defendants whether they had witnesses who knew of the gift of the said houses made to them by their deceased father. Two witnesses testified. An oath was as well administered to some of the plaintiffs to confirm the transaction done with a person who is now deceased. The trial court confirmed titles of the houses on all the defendants (now plaintiffs) except Alhaji Aminu who refused to subscribe to oath and was given discretion by the trial court either to swear or his portion be distributed to the heirs.

Dissatisfied, the defendants (original plaintiffs) appealed to the Sharia Court of Appeal Kano (lower court) on three grounds. The lower court allowed the appeal, set aside the judgment of the trial court and ordered the matter to be tried by City No.1 Area Court.

Dissatisfied further, the plaintiffs (original defendants) appealed to this court on four grounds of appeal.

It is noteworthy that although parties were not represented by counsel at the trial court, both sides engaged the services of legal counsel at the lower court and in this court. The respective counsel filed and exchanged briefs of argument. In his brief, learned counsel for the appellants Mr. N. Usman, formulated two issues viz:-